By Phil Kerpen
After the bitter, partisan, bare-knuckled way President Obama and Democratic leadership forced through their health care legislation, it is likely that the atmosphere on Capitol Hill is so poisoned that no other significant laws will make it through Congress this year.
That sounds like good news to taxpayers reeling from the bailouts, the stimulus, and the health care law. Unfortunately, President Obama appears committed to achieving his agenda by other means, and he may do so in several major policy areas if Congress fails to stop him.
The latest evidence is President Obama’s decision Saturday night to circumvent the democratic process with the recess appointment of Craig Becker to the National Labor Relations Board. Becker is the former associate general counsel of the Service Employees International Union and has written that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.”
This personnel move could be a precursor to backdoor implementation of parts of the astonishingly ill-named Employee Free Choice Act. Under EFCA, workers would lose the protection of secret ballots for union organizing elections. EFCA also takes the “bargaining” out of collective bargaining by empowering a federal bureaucrat to set contract terms for wages, benefits, and working conditions without so much as a vote of the workers.
EFCA has only 40 co-sponsors in the Senate, and any hope of getting all 60 Democrats to push it through this year ended with Scott Brown’s election. Knowing the stakes, the Senate rejected Becker’s nomination on Feb. 9, with Democrats Ben Nelson and Blanche Lincoln joining Republicans and voting no. The recess appointment is therefore a double bypass of Congress and an affront to the American people, the democratic process, and, most of all, the workers who may now be forced into unions against their will.
The administration is also bypassing Congress on global warming. Although the Waxman-Markey cap-and-trade bill passed the House on a narrow 219-212 margin, the Senate has not taken it up. Despite efforts of South Carolina Sen. Lindsey Graham to revive it, there are likely more than enough skittish Democratic senators to counterbalance Graham and a handful of other Republicans and sustain a filibuster.
Yet the administration, under the direction of White House Climate Czar Carol Browner (who was not subject to Senate confirmation), is now working on implementing its global warming agenda at the Environmental Protection Agency. EPA’s proposed regulations are sweeping in scope. They would regulate just about everything with a motor, in many cases requiring complete redesigns and operational changes. They would regulate large commercial buildings and many smaller facilities that produce carbon dioxide. The agency even recently suggested it could implement cap-and-trade itself without a vote of Congress.
Another Obama bypass is regulating the Internet under the slogan of “net neutrality.” The president notably said, “I will take a back seat to no one in my commitment to network neutrality.” That apparently includes not taking a back seat to Congress, the American people, or the democratic process, because his effort is proceeding apace despite near-zero support in Congress. The Markey-Eshoo net neutrality bill has only 21 co-sponsors. It has not even been introduced in the Senate, where last Congress it attracted only 11 co-sponsors, including then-Senator Obama.
Facing failure in Congress, Obama turned to the Federal Communication Commission and its chairman Julius Genachowski, a close friend of Obama’s who has visited the White House about 50 times. The FCC is attempting net neutrality rule making based on a shaky legal theory that may be struck down in a pending court decision. At that point, the Commission may, absurdly, declare the Internet a market failure and reclassify it under Title II of the Federal Communications Act, which would reduce Internet Service Providers to old-fashioned government-regulated utilities and give the government total regulatory control of the Internet.
Like health care, the communications system is about one-sixth of the U.S. economy. But unlike health care, this Washington takeover may require just three votes at the Federal Communications Commission, a much easier lift than 216 in the House and 60 in the Senate.
These are some of the highest-profile examples in a pattern of sidestepping Congress that will only get worse in the aftermath of health care. Fortunately, there are legislative vehicles in Congress to stop all of these power grabs, and Alaska Senator Lisa Murkowski’s resolution to stop the EPA’s global warming regulations may have a Senate vote as soon as May. That vote - and sponsorship of legislation to stop the FCC and NLRB - will show the public which members of Congress want to stand up for the democratic process, and which find it convenient to outsource their legislative heavy lifting to the administration. Voters must hold the latter responsible in November.
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